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Monday, May 02, 2016

JOTWELL: Walsh on Blackman and Wasserman on marriage equality

The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Josh Blackman and my The Process of Marriage Equality (Hastings Const. L.Q.), which explores some of the procedural issues underlying marriage-equality litigation leading to and after Obergefell. And which appears to be something that is not going away.

Posted by Howard Wasserman on May 2, 2016 at 11:31 AM in Article Spotlight, Howard Wasserman | Permalink


As to #4, found this article worthwhile:


Posted by: Joe | May 2, 2016 3:05:11 PM

To generalize the point, the Walsh piece certainly understands the procedural issues in the marriage equality litigation as an instance of politically-motivated strategic decision-making by judges designed to help out LGBT rights. But I think this is a rather tendentious interpretation. Many other things were going on. Here are a few:

1. There is just a lot of confusion among legal actors (lawyers, judges, and executive officials alike) about precisely what it means for a judge to "strike down" a law. There is even a fair amount of debate among legal academics as to aspects of this, like the question of when a public official might have a legal obligation to obey an appellate decision even when he or she is not directly bound by an injunction.

2. The standard for a stay technically requires a finding of likelihood of success on the merits, which probably wasn't present. The practical reality was that not staying these injunctions would have meant a big mess, especially in the unlikely-but-possible event of a Supreme Court reversal. This put lower courts in a bit of a bind.

3. It's actually not clear how the lower courts should respond to something like the Kitchen stay, which merely stayed the Utah court's injunction without providing any legal justification. Ignoring it entirely probably goes too far. But how do you handle cases that are similar in some respects and dissimilar in others? A lower court might apply something like the rule for summary affirmances, where the stay decision is binding as to any legally indistinguishable question, but where lower courts are not required to guess at what the Supreme Court was thinking and treat that guess as binding. That makes the Fourth Circuit's decision not to stay its ruling against Virginia's marriage ban look at least legitimate, if probably unwise: it came after far more rulings striking down marriage bans, including the Tenth Circuit's and the Fourth Circuit's own, putting the question in a very different light from a single ruling by a district court judge in Utah.

4. I do think the Supreme Court's cert denials were a mistake. But of course, if all the dissenters in Obergefell had voted to grant certiorari in October, certiorari would have been granted. So it is especially difficult to read this one as being about sympathy for same-sex marriage; indeed, it's more likely that one or two of the conservatives knew they would lose and wanted to forestall that outcome, and the liberals cooperated either because they were happy to let the circuits do it in the absence or a split (Ginsburg), or they were worried about the consequences of a nationwide decision coming too soon (probably Kennedy).

Posted by: JHW | May 2, 2016 1:42:01 PM

This seems rather unfair to Judge Crabb, who was fairly explicit about why she delayed granting an injunction against enforcing Wisconsin's marriage ban: she wanted more precise information on exactly what she was supposed to tell state officials to do. This may have been unnecessary as a matter of remedies law (indeed, as you point out in the article, other judges didn't make this choice). But that doesn't mean it was simply a disingenuous attempt to enable marriages to happen. It was an attempt to be a good, procedurally careful judge that went wrong.

Posted by: JHW | May 2, 2016 12:20:43 PM

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